Tillery v. Royal Benefit Society & Royal Fraternal Ass'n, 165 N.C. 262 (1914)

March 11, 1914 · Supreme Court of North Carolina

165 N.C. 262

BERT TILLERY v. ROYAL BENEFIT SOCIETY AND ROYAL FRATERNAL ASSOCIATION.

(Filed 11 March, 1914.)

1. Appeal and Error — Courts—Jurisdiction—Motion to Dismiss — Supreme Court.

A motion to dismiss for want of jurisdiction may be made for the first time in the Supreme Court on appeal. •

2. Courts — Jurisdiction—Pleadings—Good Faith.

The-amount demanded in the complaint in good faith determines the jurisdiction of the trial court, and when this is sufficient, a recovery of a less amount will not defeat the jurisdiction.

3. Appeal and Error — Exceptions—Instructions—Courts.

The failure of the trial judge to charge upon- particular phases of the controversy is not alone sufficient to be held for reversible error. The appellant should offer prayers for special instruction covering the matter, and except and appeal from the refusal of the court to give them.

Appeal by defendant from Whedbee, J., at October Term, 1913, of Carteret.

This is an action, commenced in the Superior Court, to recover the amount of an insurance policy and certain sick benefits which 'had accrued prior to the death of the insured.

■The plaintiff alleges that'he is entitled to recover $150, the face of the policy, and $52 sick benefits, and demands judgment for $202.

The policy is not in the record, and thfere is nothing to show that the demand' of the plaintiff is not made in good faith.

Tbe plaintiff recovered $142, and tbe defendant moves in tbe Supreme Court to dismiss tbe action for.tbat tbe Superior Court did not'bave jurisdiction; contending tbat tbe amount in controversy is less than $200.

Tbe defendant, tbe Royal Benefit Society, introduced evidence tending to show tbat Starkey Tillery was more than 55 years of age at tbe time be became ■ a member of tbe Royal Benefit Society. No offer to return premiums received was made by tbe defendant, tbe Royal Benefit Society; no application for membership was introduced as evidence. There was no evidence tbat Starkey Tillery knew of any age limit to become a member, and there was no evidence tbat Starkey Tillery represented what bis age was when be became a member.

There were no requests for instructions.

Tbe defendant assigns tbe following as errors:

1. Tbat tbe court erred in failing and refusing to charge tbe jury tbat if Starkey Tillery was more than 55 years of age-at tbe time be made application for membership in tbe Royal Benefit Society, tbe defendant was not. liable on tbe policy, as tbe same was procured under a misrepresentation of tbe age of tbe said Starkey Tillery.

2. Tbat tbe court erred in entering'judgment as set out in tbe record.

3. Tbat tbe court erred in refusing to grant a new trial.

Judgment was rendered in favor of tbe plaintiff, and tbe defendant appealed.

E. H. Gorham, for plaintiff.

G. B. Wheatly for defendant.

AlleN, J.

A motion to dismiss for want of jurisdiction may be made for tbe first time in tbe Supreme Court (McDonald v. McArthur, 154 N. C., 122); but it is not tbe recovery which determines jurisdiction. It is tbe amount demanded in good faith (Brock v. Scott, 159 N. C., 516); and as it appears tbat tbe plaintiff demanded $202, and there is nothing in tbe record from which bad faith can be inferred, tbe motion to dismiss must be denied.

The first assignment of error is without merit. There was no request for a special instruction, and if one had been requested, covering the statements in the assignment, it could not have been given, because it would have required the judge to express an opinion upon a fact' — that the policy had been procured under a misrepresentation as to age — which he could not do, if there had been evidence to support it; but it also appears from-the record that the application for membership was not introduced, and that there was no evidence that the insured made any representation as to his age. ’

The other assignments are formal, and require no discussion.

No error.